STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MARY LOUISE W. BOEHM, Employee

ELLEN'S ON GRANDVIEW, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-607300


Pursuant to the timely petition for review and request for further hearing filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby, and adopts such findings and conclusions as its own, except as herewith modified:

1. Delete the second paragraph of the FINDINGS OF FACT AND CONCLUSIONS OF LAW, and substitute therefor the following:

"During the early part of the week ending September 23, 1989, the employe's mother had a heart attack. The employe visited her mother in the hospital on September 20, the Wednesday of that week. Thereafter, the employe became increasingly upset concerning the health of her mother, her blood pressure began to become elevated, and she began to feel increasingly ill. The employe was scheduled to report to work on Friday, September 22 at 7:00 a.m., but she failed to appear at work or to call the employer to notify it that she would not be in, because she overslept. The employe went to her doctor, who advised her that her blood pressure was very high and that she should be in bed. The employe attributes her oversleeping on Friday, September 22 to her illness.

"On the evening of Friday, September 22 the employe went to the work place. She picked up her paycheck and she spoke with Stephen Villi, the manager, and then with August Magestro, one of the chefs, who was a supervisor. She presented the employer with a doctor's excuse for her absence. The employe told Villi that she could not work until Monday, and was told that she was not scheduled at all during the following week; she was also told that she was to come in on the following day, Saturday, September 23, to speak with Magestro.

"The employe did come to the work place on September 23, and at that time Magestro told her that she was being given a one-week disciplinary suspension, that it might be indefinite, and that she should get back to the employer. He did not tell. her any particular time she should get back to the employer. The employe did contact the employer again, on Friday, September 29, speaking to Michael Lustig, the other chef, but he told her that the employer had made no decision and could in a couple of days. Then on October 5, 1990, Lustig called the employe in and advised her that she was being terminated. The employer terminated the employe for failing to report to work on Saturday, September 30, as she had allegedly been instructed to do, following earlier attendance problems, and for other deficiencies in performance, including her behavior at work and her holding of parties at her home at which it was alleged that alcohol was served and minor employes of the employer attended."

2. Delete the fifth paragraph of the FINDINGS OF FACT AND CONCLUSIONS OF LAW, and substitute therefor the following:

"An employer has a right to expect an employe to report to work when able to do so and to provide reasonable notice. On Friday, September 22, even if the employe was ill and over slept, it was not clear why she could not have contacted the employer before she reported for her check in the evening if she was able to arrange a doctor's appointment. Her actions on that occasion were wrongful. However, she had had no attendance infractions between April and September. The situation is mitigated by her own illness and the illness of her mother. With respect to the employe's failure to appear at work on Saturday, September 30, the employer failed to establish that the employe had actually been instructed to report to work on that date. Although the employe's actions with respect to attendance may have been found unsatisfactory by the employer, it was not demonstrated that her attendance record was so poor or disruptive as to amount to a wilful disregard of her responsibilities to the employer."

The Commission also determines that further hearing is not warranted.

DECISION

The employer's request for further hearing is denied and the Appeal Tribunal Decision is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employe is eligible for benefits, if she is otherwise qualified.

Dated and mailed August 6, 1990
110 - CD1002    PC 717  PC 734

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In its petition for Commission review, the employer has requested an opportunity for further hearing on the grounds that a witness that it planned to present at the hearing, August Magestro, could not be present because car problems on the morning of hearing prevented his being there. The Commission has considered this request, but has concluded that further hearing is not required.

Magestro's testimony would have been material. The incident which precipitated the employe's termination was her failure to appear at work on Saturday, September 30, 1989. The employer claims that the employe had been instructed to appear at work on that day. However, the employer offered no direct, non-hearsay evidence that the employe had in fact been so instructed. According to the employer, it was Magestro who allegedly gave these instructions.

However, the fact that Magestro's testimony might have been material is not, in itself, enough to justify further hearing. The employer had obviously planned on having Magestro present. It was just as obviously aware, at the hearing, that Magestro had not appeared. Nevertheless, the employer made no request for a postponement of the hearing, or for an opportunity for continued hearing, to allow Magestro's testimony to be taken. The employer in fact failed to even mention the absence of Magestro as a witness until close to the end of the hearing. At that point, the Administrative Law Judge had asked the employer if it had anything further to add, and after, a discussion of another matter, when the Administrative Law Judge repeated his general inquiry, a representative of the employer volunteered that:

"Well, we had another chef that was to be here today but he had car trouble in Milwaukee . . . and I'm sure he would have had some things to mention also."

Nothing else was said. The employer did not follow up on this in any respect, as for example by asking if it would be possible to have his testimony taken at some other point.

The Commission considers that it is incumbent on a party, who feels that their ability to present their case has been compromised by the absence of a witness they planned to call, that they raise this matter to the Administrative Law Judge prior to or at the hearing in some fashion adequate to communicate to the Judge that the party actually desires an opportunity for further hearing. An Administrative Law Judge cannot reasonably be expected to follow up on every equivocal comment about other persons who could allegedly offer testimony on the case, by offering an opportunity for or ordering further hearing. If a reasonably direct request for an opportunity to present the testimony of an absent witness is made at the time of hearing, the Administrative Law Judge can explore the matter and make a determination as to whether further hearing would be appropriate. In the absence of such a reasonably direct request, however, the Commission considers it appropriate to conclude that the party has decided that they can do without presentation of the evidence in question. When a party has so decided, they will not be heard to assert later, after the hearing has been closed and a decision contrary to that party issued, that they now wish to present the testimony of that witness. For these reasons, the employer's request for further hearing is denied.

 

NOTE: The Commission has modified the Administrative Law Judge's decision merely to correct what appeared to have been inadvertent errors by the Judge in identifying dates and chronologies of certain events. The Commission had no significant disagreement with the other material findings of fact of the Administrative Law Judge, or his judgment in terms of the application of the misconduct standard to the facts of this case.

cc:
Jacob Schwei
Attorney at Law
Schwei, Stern & Gay


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